Tag: libraries

Controlled Digital Lending is a Dubious Proposal in Every Sense

On March 24, the court in Hachette et al. v. Internet Archive wholly rejected IA’s fair use defense constructed on the theory called Controlled Digital Lending (CDL). Prior to and since that ruling, various parties have tried to characterize this case as an attack by the publishers against the core function of libraries, alleging that libraries either already depend, or will come to depend, on CDL to meet the needs of communities in the digital age.

It is easy to promote a message that says Library good. Publisher bad. And I get why various people, including policymakers and librarians, might respond to the slogan. But the populist message obscures what a convoluted, if not insidious, proposal CDL truly is. While it may be true that select libraries engage in limited activities, long exempted by statute, which certain vested interests now describe as akin to CDL, it is erroneous to suggest that CDL, as envisioned by its proponents, is inherent to library operations. On the contrary, it is a complicated and expensive proposal—even if it were legal.

The CDL theory, based on ideas first proposed by Professor Michelle Wu (Georgetown University), is fleshed out and advocated in a 2018 white paper written by Kyle Courtney (Library Futures Chair) and David R. Hansen (Authors Alliance Executive Director). According to their reading of the fair use doctrine in conjunction with first sale doctrine,[1] Courtney and Hansen argue that libraries are legally permitted to erect their own ebook lending models by digitizing and then loaning digital books based on the number of legally obtained physical copies in the collection.

On its face, the concept sounds fair-minded and progressive—hypothetically adding new digital access while allowing the library to bypass (i.e., not pay for) current ebook licensing/lending regimes like OverDrive. And according to the theory, CDL will not disrupt the authors’ interests because it purports to maintain, rather than alter, longstanding copyright doctrine. Who wouldn’t endorse that from the sound of it? Candidly, someone who is not well-versed in copyright law or contemplating the practical implications of the CDL model.

Sparing readers a detailed breakdown of the legal constructs in the 42-page white paper, suffice to say, the keystone argument—a fair use defense riding on the first sale doctrine—was unequivocally rejected by the court in Hachette last month because the central points had already been made and rejected by this same circuit in contemporary cases.[2] In fact, CDL proponents may not be thrilled that Internet Archive was the first (and perhaps the last) institution to represent their theory in court because, even with millions in revenue, IA failed to implement the “controlled” part of the model.[3]

This begs an important question for libraries: if IA is their Galahad in the quest for CDL, why does it fail operationally to implement the model? That the underlying legal theory would fail was hardly in doubt, and this alone should doom CDL as a consideration for any library. But it is further notable that, even if CDL were legal in some form, implementing it would likely be more costly than the current ebook lending regime the library would be circumventing.

CDL Would Not be Free or Liability Free

Launching a CDL model, as set forth in the white paper, implies considerable expense, requiring either a library-developed system or paying to use a system developed by a third party. Presumably, the CDL folks imagined that Internet Archive would be that third party, but as that organization failed to adhere to the controls in the model, this should prompt librarians to consider what it would cost to adopt “real” CDL, and for what purpose.

Without addressing the practical implications of a holistic, auditable CDL system, proponents appear to recommend that libraries invest substantial resources in a new, complex model to manage physical and digital book lending and then wait to see if it gets sued. Because, astoundingly, the white paper contains a whole section advising libraries as to how they might limit risk when implementing CDL. It must be nice to sit in an office at an elite law school, devise a hypothesis that some proscribed conduct is “legal,” and then suggest somebody else try it to find out. And all this fuss, cost, and opportunity cost is to circumvent existing models that make ebooks available for about a dollar or less per loan?

The Future of Libraries is Not About eBooks

Finally, it cannot be ignored that the sustainability of libraries does not lie in providing more access to digital books and other materials via websites. Libraries are physical spaces that play important and diverse roles in each community, and their future depends on maintaining relevance as physical spaces operated by professionals with certain skills and sensitivities to local needs. Whether that means story time for children or hosting career counselors for adults or a thousand other initiatives, digital book lending is not a community connecting activity any more than shopping on Amazon is a social experience.

If ebook loans become too prominent a feature of a library system, those physical spaces and professional librarians will no longer be needed (i.e., funded). And in case it isn’t obvious by now, digital platforms tend to swallow independent institutions. Much like internet consolidation has nearly exterminated the local and independent newspaper, a similar consolidation of reading material into a more centralized, globally accessible network (as envisioned by Internet Archive’s Brewster Kahle) would be fatal to the local library as a lending institution.

Libraries should spend their limited resources on building and maintaining personal relationships with communities rather than waste time with complicated and erroneous workarounds to copyright rights. Frankly, the well-funded academics and organizations peddling CDL would do more good for libraries if they just hosted a damn bake sale.

[1] Specifically, the paper argues that factor one of the fair use test favors CDL because its “purpose” is to fulfill the intent of the first sale doctrine—and then, they argue this is further bolstered because libraries are not commercial entities.

[2] e.g., ReDigi, TVEyes.

[3] For instance, the CDL paper does not envision an unaccountable system whereby physical books are stored in shipping containers as the basis for digital copy loans. Internet Archive does this.

Photo by: JackF

Books are Not Floor Wax and Road Salt

One would think this is obvious, particularly to a librarian, but perhaps not to Douglas Lord, President of the Connecticut Library Association (CLA). In a letter addressed to the state assembly advocating passage of H.B. 6829, Connecticut’s version of similar bills proposed (and shot down) in other states to address alleged unfairness in eBook licensing to libraries, Lord writes:

It is very important to note that this legislation has nothing to do with copyright, it is a matter of contract law. In the same way that taxpayer funds are treated preferentially with all other state contracts – from floor wax to vehicles to road salt – the same should be true for electronic content. [Emphasis included]

Although the Connecticut bill does not require publishers to license to libraries in the state, it contains several provisions defining various publishers’ licensing models as “unfair trade practice,” which is tantamount to a state compulsory license, which means H.B. 6829 is preempted by the Copyright Act. So, it has something to do with copyright law. In fact, although I am sure Lord does not sincerely equate books to floor wax and road salt, his disregard for the unique cultural value of the former may explain his absurd allegation that copyright law is not implicated in a state bill about contracts. Every contract negotiated for the use of copyrightable works rests upon the author’s exclusive rights enumerated in Section 106 of Title 17. So, Lord’s declaration is either intentionally misleading or naively misguided.

Notably, Lord’s letter reiterates the ambiguous rationale that has been proffered by every advocate of these bills in every state so far—i.e., the difference between the retail price of an eBook purchase compared to the licensing models that publishers offer to libraries. He states, “Consumers pay, on average, $12.77 for eBooks from retailers like Amazon. The average cost for a public library for the exact same product is $45.75.” Indeed, if one does not look beyond those two numbers or gather any relevant community information, the price comparison looks outrageous, even extortionate.

But to address this issue, I did my best to examine the market in my own region served by the Mid-Hudson Library System and found that a) less than one-third of the MHLS community accesses the library system for books of any kind; and b) that the average eBook cost per read is ~$1.06. And apropos the big picture for the taxpayer, it is notable that maintaining a library’s collection—both physical and electronic—is usually a fraction of its operating costs. To quote my post looking at MHLS:

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

While $1.06 per read does not seem extortionate, I do not claim to know whether that price is “fair to the taxpayer” in New York or Connecticut or anywhere else. But that’s my point. No advocate of these eBook bills, to my knowledge, has attempted to demonstrate a critical need for this legislation based on cost/benefit numbers, which is odd when one is alleging unfair use of public funds. And I suspect that’s because these bills are not directed at solving a real problem but are instead the hobbyhorse of anti-copyright activists like Jonathan Band and Kyle Courtney. Consequently, it is no surprise that advocacy of these bills, including this letter from CLA, repeats the vague tautology that publishers are extortionate and usually ignores the interests of authors.

Here, Lord goes a step further and claims that “Authors get no added royalties or income from these sales.” Not true. Authors’ contracts include revenue from eBook licensing to libraries, and the author’s percentage of eBook revenue is usually higher than her cut from physical book sales. Plus, those percentages typically increase as sales go up, advances are covered, etc. So, I am not sure whence Lord’s assertion comes, but it is consistent with the logic behind this bill—that books are like other commodities, and the author’s pecuniary interests are not directly associated with her copyright rights.

As I’ve repeated in nearly every post on this topic, the libraries should be careful what they wish for when it comes to eBook licensing and, if they hope to remain relevant, should avoid putting too many eggs in the digital basket. The logic is not hard to follow. If 90% of the cost of keeping libraries open is not about the collection, and the digital collection grows too large, how long before taxpayers figure out that facilitating eBook loans can be done with a website and without those expensive buildings and librarians? After all, some taxpayers may think that a former library would be a handy place to stockpile floor wax and road salt.

Photo by: AndreyPopov

An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.